BYLAW NOTICE ENFORCEMENT REGULATION

Transcription

1 Page 1 of 22 Copyright (c) Queen's Printer, Victoria, British Columbia, Canada License Disclaimer B.C. Reg. 175/2004 O.C. 392/2004 Deposited April 22, 2004 effective May 3, 2004 Local Government Bylaw Notice Enforcement Act BYLAW NOTICE ENFORCEMENT REGULATION Note: Check the Cumulative Regulation Bulletin 2015 and 2016 for any non-consolidated amendments to this regulation that may be in effect. [includes amendments up to B.C. Reg. 253/2015, December 22, 2015] Link to Point in Time Contents Part 1 Interpretation and Application of Act 1 Definitions 2 Where the Act applies Part 2 Bylaw Notices 3 Bylaw matters excluded from enforcement by bylaw notice 4 Other means of delivery 5 Application to set aside bylaw notice debt Part 3 Adjudication of Disputes 6 Adjudicator qualifications 7 Appointing adjudicators 8 Adjudicator oath of office 9 Roster organization 10 Adjudicator's remuneration and expenses 11 Rosters of adjudicators 12 Selecting adjudicators 13 Issues under section 16 of the Act 14 Adjudicator decision 15 Hearing record Part 4 Collection of Bylaw Notice Penalties 16 Certificate requirements for filing with the court

2 Page 2 of Suspending a certificate filed with the court 18 Cancelling a certificate filed with the court Schedule 1 Schedule 2 Schedule 3 Part 1 Interpretation and Application of Act Definitions 1 (1) In this regulation: "Act" means the Local Government Bylaw Notice Enforcement Act; "certificate" means a certificate in the form prescribed in section 14 of this regulation filed with the Provincial Court under section 26 [amounts owing enforced as Provincial Court judgment] of the Act; "disputant" means a person who (a) requests an adjudication under section 8 (1) (b) [options on receipt of bylaw notice] of the Act, or (b) requires an adjudication under section 13 (1) [requiring dispute adjudication] of the Act; "full day sitting", in relation to an adjudicator, means at least two 3 hour periods of hearing one or more disputes and one hour period of administration in relation to those hearings in one 24 hour period; "half day sitting", in relation to an adjudicator, means at least one 3 hour period of hearing one or more disputes and 1/2 hour of administration in relation to those hearings in one 24 hour period;

3 Page 3 of 22 "hearing by telephone" means an adjudication in respect of which one party elects to be heard in a manner provided under section 18 (2) (c) [adjudication procedures] of the Act, if the adjudicator can hold the hearing in that manner from the adjudicator's normal place of business, and the other party elects to be heard in the same manner or in writing; "hearing in person" means an adjudication in respect of which one party elects to be heard in a manner provided under section 18 (2) (a) of the Act or, if the adjudicator must attend a specific location other than the adjudicator's usual place of business for the purpose of hearing in that manner, in a manner provided under section 18 (2) (c) of the Act, regardless of how the other party elects to be heard; "hearing in writing" means an adjudication in respect of which both parties elect to be heard in the manner provided under section 18 (2) (b) of the Act; "roster" means a roster established under section 11 [rosters of adjudicators]; "roster organization" means any body designated by the Attorney General to select adjudicators. (2) For the purposes of the definition of "local government" in section 1 of the Act, the following bodies are prescribed: (a) Denman Island Local Trust Committee; (a.1) Gabriola Island Local Trust Committee; (b) Galiano Island Local Trust Committee; (c) Gambier Island Local Trust Committee; (c.1) Hornby Island Local Trust Committee; (c.2) Lasqueti Island Local Trust Committee;

4 Page 4 of 22 (c.3) Mayne Island Local Trust Committee; (d) North Pender Island Local Trust Committee; (e) Salt Spring Island Local Trust Committee; (f) Saturna Island Local Trust Committee; (g) South Pender Island Local Trust Committee; (h) Thetis Island Local Trust Committee. [am. B.C. Regs. 7/2010, s. (a); 72/2011, s. 1.] Where the Act applies 2 The Act applies to each local government set out in Column 2 of Schedule 1 on the date set out opposite the local government in Column 1. Part 2 Bylaw Notices Bylaw matters excluded from enforcement by bylaw notice 3 For the purposes of section 28 (2) (a) [power to make regulations] of the Act, contraventions of bylaws that are in relation to the following matters may not be designated by a local government bylaw under section 4 (1) [bylaw notice] of the Act: (a) firearms; (b) motor vehicle speed limits. Other means of delivery 4 For the purposes of section 28 (2) (f) of the Act, a local government may deliver a bylaw notice, (a) if the named person is a corporation or a business, by delivering the bylaw notice to a director, manager or other executive officer of the corporation or business, or of a branch of it,

5 Page 5 of 22 (b) if the named person is an extraprovincial company as defined in the Business Corporations Act, by delivering the bylaw notice to the attorney for the extraprovincial company, and (c) if the bylaw notice is in respect of a particular parcel of real property or an improvement on a particular parcel of real property, by delivering the bylaw notice to a person who appears to be at least 16 years old at that parcel, and if a bylaw notice is delivered in accordance with paragraph (a), (b) or (c), the bylaw notice is presumed to have been received by the named person, if delivered personally, on the date of delivery and, otherwise, on the 7th day after mailing. Application to set aside bylaw notice debt 5 (1) A person named in a bylaw notice who owes a debt to a local government (a) under section 13 (2) [requiring dispute adjudication] of the Act, because the person failed to require dispute adjudication within the period provided in section 13 (1) of the Act, (b) under section 18 (4) [adjudication procedures] of the Act, because the person failed to appear at the time scheduled for the hearing, or (c) under section 25 (2) [if original bylaw notice not received] of the Act, because the person failed to take an action under section 8 (1) [options on receipt of bylaw notice] of the Act within the period established by bylaw for the purposes of section 8 (1) of the Act

6 Page 6 of 22 may apply to the local government that issued the bylaw notice to have the debt cancelled and either (d) an adjudication scheduled in respect of the rescission of the compliance agreement, or (e) the period established for the purposes of section 8 (1) restarted in relation to the bylaw notice. (2) An application under subsection (1) of this section may be made (a) in the case of a debt described in subsection (1) (a) of this section, only within 30 days after the period specified in section 13 (1) of the Act for requiring adjudication, (b) in the case of a debt described in subsection (1) (b) of this section, only within 30 days after the scheduled date of the adjudication, and (c) in the case of a debt described in subsection (1) (c) of this section, only within the 28 day period under section 24 (3) of the Act that applies in relation to the bylaw notice in which the person is named. (3) On an application under subsection (1), if a screening officer or other official designated for this purpose by the local government is satisfied that the failure described in subsection (1) (a), (b) or (c) that resulted in the debt was not the person's fault, the screening officer or other official must cancel the debt, and (a) if the application is under subsection (1) (a) or (b), refer the dispute to an adjudicator, and (b) if the application is under subsection (1) (c), order that the period under section (1) is restarted in relation to the bylaw notice on the date of the order.

7 Page 7 of 22 (4) An application under subsection (1) (a) may not be considered by the screening officer who entered into the compliance agreement. (5) If a debt is cancelled under subsection (3) in relation to which a certificate has been filed, the local government must withdraw the certificate from the court. Part 3 Adjudication of Disputes Adjudicator qualifications 6 To be eligible for appointment as an adjudicator, a person must have all of the following qualifications: (a) has not been convicted of an offence under a federal or provincial enactment for at least 10 years before applying for the appointment; (b) is not named in a bylaw notice, or a ticket issued under Division 3 of Part 8 of the Community Charter or Part XXII [Police Magistrates] of the Vancouver Charter, in relation to which a penalty is outstanding and overdue; (c) has not been an employee or an elected official of a local government for at least 6 months before the appointment; (d) is not an employee or an elected official of a local government; (e) has at least one year's experience as an adjudicator of disputes; (f) has post-secondary training in adjudication; (g) has successfully completed any specialized training required by the roster organization;

8 Page 8 of 22 (h) is recommended for appointment by the roster organization. Appointing adjudicators 7 (1) An adjudicator may be appointed for an initial term of 1 to 2 years. (2) An adjudicator may be reappointed for a second or subsequent term of 3 to 5 years. (3) The deputy attorney general must rescind an appointment under subsection (1) or (2) if satisfied that (a) the person has ceased to be qualified for the appointment, or (b) on reliable evidence of the person's misconduct, neglect of duty or incapacity, the person is not suitable for the appointment. (4) If the deputy attorney general is satisfied that the grounds for the rescission of an appointment under subsection (3) were false or inaccurate or have been remedied or otherwise ameliorated, the deputy attorney general may reappoint the person. (5) If an adjudicator resigns or his or her appointment expires other than by a rescission under subsection (3) and the adjudicator has started to hear a dispute, the adjudicator may continue to act as an adjudicator until the adjudicator has decided the dispute and provided his or her decision to the local government under section 14 [adjudicator decision] and section 10 [adjudicator's remuneration and expenses] applies. Adjudicator oath of office 8 Before performing the duties of an adjudicator, a person appointed under section 15 (1)[dispute adjudicators] of the Act must swear or affirm the oath set out in Schedule 2.

9 Page 9 of 22 Roster organization 9 (1) The roster organization is responsible for all of the following: (a) training adjudicators; (b) maintaining one or more rosters of adjudicators; (c) selecting adjudicators for adjudications; (d) remunerating adjudicators. (2) On the request of a local government or the minister, the roster organization must prepare and provide reports in accordance with the request. Adjudicator's remuneration and expenses 10 (1) An adjudicator must be paid for each half day sitting and each full day sitting in accordance with the per diem rates established in the applicable Treasury Board directive for the category of group 1 administrative tribunals. (2) If an adjudicator hears disputes in a 24 hour period that together constitute less than a half day sitting, the adjudicator must be paid for each hearing as follows: (a) $19.44 for each hearing in person; (b) $12.50 for each hearing in writing; (c) $16.66 for each hearing by telephone. (3) If an adjudicator hears disputes in a 24 hour period that together constitute more than a half day sitting, but less than a full day sitting, the adjudicator must be paid for a half day sitting plus the applicable amount as follows for each hearing after the half day sitting: (a) $19.44 for each hearing in person; (b) $12.50 for each hearing in writing;

10 Page 10 of 22 (c) $16.66 for each hearing by telephone. (4) If an adjudicator has been scheduled for a half day sitting or a full day sitting and the sitting is cancelled with less than 48 hours notice, the adjudicator must be paid $175. (5) In addition to the amounts under subsections (1), (2), (3) and (4), if an adjudicator must travel more than 32 kilometres from his or her usual place of employment for a hearing in person, an adjudicator must be paid (a) travel costs, and (b) expenses in accordance with the travel allowances and policies established for Provincial government employees classified as Group 2. Rosters of adjudicators 11 (1) The roster organization must establish one or more rosters of adjudicators which may be established for the purpose of hearing disputes (a) for all local governments that have established a bylaw notice dispute system, (b) for all local governments in a particular geographical region of the Province that have established a bylaw notice dispute system, or (c) for one or more particular local governments that have established a bylaw notice dispute system. (2) A roster must contain the names of at least 3 persons appointed by the deputy attorney general under section 15 (1)[dispute adjudicators] of the Act and, initially, the names must be listed alphabetically.

11 Page 11 of 22 (3) After a roster has been established in accordance with subsection (2), any adjudicators added to the roster must be added at the end of the roster in order of appointment. (4) The roster organization must specify for each roster whether an adjudicator from the roster is assigned for (a) the number of hearings necessary to constitute a half day sitting, (b) the number of hearings necessary to constitute a full day sitting, (c) the adjudications requested for a specified number of days, or (d) the adjudications scheduled for a particular calendar month. (5) Despite subsection (4), the roster organization may assign adjudicators from a roster for fewer hearings than is required for the rotational period specified for the roster under subsection (4) if this is necessary (a) in order to schedule an adjudication within the period specified under section 12 (1) (e) in relation to the adjudication, or (b) because section 12 (4), (5), or (7) applies in relation to an adjudication. (6) An adjudicator may be listed on more than one roster. Selecting adjudicators 12 (1) If a local government is requested or required to refer a matter for adjudication, the local government must request the assignment of an adjudicator by notifying the roster organization of the following matters: (a) the full names of the parties to the dispute; (b) the subject matter of the dispute;

12 Page 12 of 22 (c) the estimated duration of the adjudication; (d) how the parties have elected to be heard; (e) a specified period during which the local government requires that the dispute be adjudicated. (2) Subject to section 11 (5) of this regulation, on receipt of a sufficient number of notices under subsection (1) from a local government, or from one or more local governments that have entered into an agreement referred to in section 2 (4) [application of Act] of the Act, to constitute the rotational period specified under section 11 (4) of this regulation in relation to the roster, the roster organization must offer the assignment to the adjudicator whose name first appears on the roster to adjudicate the disputes. (3) Once an adjudicator has accepted an assignment under subsection (2), the name of the adjudicator must be moved to the end of the roster. (4) An adjudicator may not accept the assignment of an adjudication if the adjudicator has or may reasonably be apprehended to have a bias or interest in relation to the outcome of the dispute. (5) Despite subsection (2), if the first-named adjudicator on a roster does not accept the assignment, the roster organization may offer the assignment to the secondnamed adjudicator on the roster. (6) When the roster organization advises a local government that it has assigned an adjudicator to hear a dispute, the local government must provide the disputant with at least 14 days written notice of the time, date and location of the hearing unless the disputant agrees to less than 14 days notice. (7) If an adjudicator who has accepted the assignment of an adjudication is unable to hear the dispute, finish hearing

13 Page 13 of 22 the dispute within a reasonable period or provide a written decision as required under section 14 [adjudicator decision], the roster organization must assign a different adjudicator to hear the dispute and, whether or not the first-assigned adjudicator commenced hearing the dispute, the second-assigned adjudicator must restart the hearing. Issues under section 16 of the Act 13 If, in the opinion of an adjudicator, a matter described in section 16 [limitation on jurisdiction of adjudicator] of the Act is raised by the disputant in the course of a hearing, the adjudicator must (a) complete the hearing and make a determination in the dispute as if the matter under section 16 of the Act had been determined against the disputant by a court or tribunal of competent jurisdiction, (b) in the decision provided under section 14 of this regulation, identify the matter raised and specify the assumption made under paragraph (a) for the purposes of determining the dispute, and (c) advise the parties to the dispute of (i) the procedures the adjudicator is required to follow under paragraph (a), and (ii) what will be recorded in the adjudicator's decision because of paragraph (b). Adjudicator decision 14 An adjudicator who hears a dispute in respect of a bylaw notice or the rescission of a compliance agreement must

14 Page 14 of 22 provide his or her written decision to the local government that issued the bylaw notice, (a) for a hearing in person or a hearing by telephone, within one business day after deciding the dispute, and (b) for a hearing in writing, within 5 business days after the date the adjudicator receives the written materials for the dispute. Hearing record 15 If a party to an adjudication makes an application under the Judicial Review Procedure Act within the period specified in section 22 (2) [final determination by adjudicator] of the Act in respect of a decision of the adjudicator, the local government that was a party to the dispute must compile a hearing record consisting of the all the following: (a) a copy of the bylaw notice; (b) a copy of the notice of hearing under section 12 (6) of this regulation; (c) if the adjudicator decided the dispute, the adjudicator's written decision; (d) if the disputant has voluntarily paid the penalty under the bylaw notice following an adjournment and before the dispute was decided, a written notice of the voluntary payment. Part 4 Collection of Bylaw Notice Penalties Certificate requirements for filing with the court 16 The form of certificate set out in Schedule 3 is prescribed for the purposes of section 26 (1) of the Act.

15 Page 15 of 22 Suspending a certificate filed with the court 17 (1) On the application of a person named in a certificate within 30 days after the date the certificate is filed, a justice may order that the certificate is suspended if the justice is satisfied that (a) the bylaw notice described in the certificate was not delivered in accordance with section 7 (1) (a) [delivery of bylaw notice in person] of the Act, (b) the amount owing under the certificate is payable because of a default described in section 9 (1) or (2) [if a person does not take action under section 8] of the Act, and (c) through no fault of the person, the person (i) did not receive the bylaw notice, (ii) did not receive a notice under section 24 (1) [notice required if no response to bylaw notice] of the Act in relation to the bylaw notice, and (iii) did not know of the bylaw notice or the outstanding penalty at any time within the period (A) specified by bylaw for the purposes of section 8 (1) [options on receipt of bylaw notice] of the Act, or (B) set out in section 24 (3) [notice required if no response to bylaw notice] of the Act. (2) Proceedings described in section 26 (4) [amounts owing enforced as Provincial Court judgment] of the Act may not be taken on a certificate while it is suspended. (3) If a justice suspends a certificate under subsection (1), the local government that issued the bylaw notice must

16 Page 16 of 22 deliver a copy of the bylaw notice to the person in a manner authorized under section 7 [delivery of bylaw notice] of the Act, except the manner authorized under section 7 (1) (c) of the Act. (4) Section 8 [options on receipt of bylaw notice] of the Act applies to a person in respect of whom a certificate is suspended by order under subsection (1) as if the person received the bylaw notice on the date of the order. (5) If, on the date the period specified by bylaw for the purposes of section 8 of the Act ends, the person (a) has complied with section 8 of the Act, the certificate is deemed to have been withdrawn and the debt that arose under section 9 [if a person does not take an action under section 8] of the Act in relation to the person is cancelled, and (b) has not complied with section 8 of the Act, the suspension under subsection (1) ends. Cancelling a certificate filed with the court 18 (1) On the application of a person named in a certificate within 30 days after the date the certificate is filed, a justice may order that the certificate is cancelled and a new adjudication be scheduled if the justice is satisfied that (a) the person either requested dispute adjudication under section 8 (1) (b)[options on receipt of bylaw notice] of the Act or required dispute adjudication under section 13 (1)[requiring dispute adjudication] of the Act, (b) through no fault of the person, the person failed to be heard on the adjudication and the adjudicator made an order under section 18

17 Page 17 of 22 (4) [adjudication procedures] of the Act in relation to the person, and (c) the certificate was filed by the local government to recover the amount ordered due and payable by the person under section 18 (4) of the Act. (2) If a justice makes an order described in subsection (1), the debt ordered under section 18 (4) of the Act in relation to the person is cancelled and the local government that issued the bylaw notice must refer for adjudication the dispute in relation to which the person requested or required dispute adjudication. Schedule 1 [am. B.C. Regs. 368/2005; 10/2006; 326/2006; 350/2006; 16/2007; 77/2007; 141/2008; 256/2008; 24/2009; 81/2009; 82/2009; 110/2009; 174/2009; 230/2009; 306/2009; 6/2010; 7/2010, s. (b); 8/2010; 109/2010; 110/2010; 272/2010; 316/2010; 317/2010; 366/2010; 72/2011; 76/2011; 136/2011; 159/2011; 134/2012; 282/2012; 341/2012; 28/2013; 202/2013; 230/2013; 97/2014; 142/2014; 256/2014; 137/2015; 153/2015; 252/2015; 253/2015.] (section 2) Column 1 Date Act Applies Column 2 Local Government February 1, 2006 Bowen Island Municipality April 1, 2009 April 1, 2007 October 1, 2008 Cariboo Regional District City of Abbotsford City of Burnaby September 1, 2005 City of Chilliwack September 1, 2005 City of Coquitlam May 1, 2009 July 31, 2015 City of Cranbrook City of Dawson Creek February 1, 2006 City of Duncan

18 Page 18 of 22 January 1, 2010 City of Kelowna September 26, 2012 City of Nanaimo May 3, 2004 City of North Vancouver August 1, 2009 City of Parksville January 1, 2010 City of Penticton July 14, 2014 City of Port Alberni October 1, 2008 City of Port Coquitlam September 1, 2005 City of Richmond September 1, 2005 City of Surrey February 1, 2011 City of Vancouver May 1, 2010 City of Vernon September 30, 2013 City of Williams Lake December 22, 2015 Corporation of the City of Enderby October 1, 2010 Corporation of the City of Nelson April 1, 2009 Corporation of the City of New Westminster December 22, 2015 Corporation of the City of Victoria May 26, 2014 Corporation of the Township of Esquimalt February 1, 2010 Denman Island Local Trust Committee June 21, 2012 District of Barriere September 30, 2013 District of Coldstream September 1, 2005 District of Hope September 1, 2005 District of Kent February 1, 2010 District of Lake Country May 1, 2011 District of Maple Ridge May 3, 2004 District of North Vancouver January 1, 2010 District of Peachland January 1, 2007 District of Pitt Meadows September 26, 2012 District of Sechelt January 1, 2007 District of Squamish January 1, 2010 District of Summerland October 1, 2009 District of Tofino December 22, 2014 District of Wells January 1, 2010 District of West Kelowna May 3, 2004 District of West Vancouver

19 Page 19 of 22 February 1, 2006 Fraser Valley Regional District May 1, 2011 Gabriola Island Local Trust Committee February 1, 2010 Galiano Island Local Trust Committee February 1, 2010 Gambier Island Local Trust Committee March 1, 2009 Greater Vancouver Regional District May 1, 2011 Hornby Island Local Trust Committee May 1, 2011 Lasqueti Island Local Trust Committee May 1, 2011 Mayne Island Local Trust Committee February 1, 2010 North Pender Island Local Trust Committee May 16, 2011 Northern Rockies Regional Municipality August 1, 2011 Peace River Regional District September 30, 2013 Regional District of Central Kootenay February 4, 2013 Regional District of Central Okanagan January 1, 2010 Regional District of Okanagan-Similkameen February 1, 2010 Salt Spring Island Local Trust Committee February 1, 2010 Saturna Island Local Trust Committee May 1, 2011 South Pender Island Local Trust Committee July 31, 2015 Squamish-Lillooet Regional District November 30, 2010 Sun Peaks Mountain Resort Municipality November 30, 2010 Sunshine Coast Regional District September 15, 2011 The Corporation of Delta November 25, 2013 The Corporation of the Village of Fruitvale February 1, 2006 The Municipality of the Village of Lions Bay May 1, 2011 Thetis Island Local Trust Committee September 30, 2013 Thompson-Nicola Regional District November 30, 2010 Town of Creston May 1, 2010 Town of Gibsons November 26, 2012 Town of Golden February 1, 2010 Town of Oliver July 1, 2008 Township of Langley February 12, 2007 Village of Harrison Hot Springs June 21, 2012 Village of Valemount Schedule 2

20 Page 20 of 22 Adjudicator Oath (section 8) I,...[name of adjudicator]... do swear/affirm that I will faithfully, honestly and impartially fulfill the duties and exercise the powers entrusted to me as an adjudicator under the Local Government Bylaw Notice Enforcement Act and that I have not received and will not receive any payment or reward, or any promise of payment or reward, for the exercise of any partiality or other improper execution of my office. Sworn/Affirmed by me, at...[place], on... [date].... [Signature of person swearing or affirming oath]... A commissioner for taking affidavits for British Columbia Schedule 3 Form of Certificate (section 16)

21 Page 21 of 22 [Provisions relevant to the enactment of this regulation: Local Government Bylaw Notice Enforcement Act, S.B.C. 2003, c. 60, sections 28 and 29]

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